Aviles-Rivera: NAS Updates are evidence subject to AMA evidentiary limits
/Aviles-Rivera v. McDonough, 35 Vet.App. 268 (2022)
HELD: NAS updates that were created outside the AMA evidentiary window are evidence and cannot be deemed to be constructively in the record.
Summary: In April 2017, the Board remanded the Vietnam veteran’s appeal for service connection for hypertension for an examiner to consider the NAS Updates. The examiner provided an opinion in October 2017. In June 2018, the veteran opted into the AMA through the RAMP pilot program. In September 2018, VA issued a Higher Level Review decision. In November 2018, the NAS Update links hypertension to herbicide exposure. The veteran appealed to the Board - selecting the “Direct Review” option. In April 2019, the Board continued to deny service connection, without considering the NAS Update.
On appeal to the CAVC, the veteran argued that the Board improperly ignored the 2018 NAS Update and that the examiner’s opinion was inadequate because it was rendered without the benefit of that information. The CAVC rejected these arguments, finding that because the veteran opted into the AMA and chose the “Direct Review” docket at the Board, he “agreed” that the Board would not consider any evidence after the September 2018 decision.
The Court found that the 2017 Board remand to ”consider NAS Updates” did not require VA to delay the appeal while waiting for any future updates - and also held that the AMA evidentiary review limits do not violate the principles of fair process.
This case was appealed to the Federal Circuit on July 22, 2022.
